State v. Thompson

• Decision Date: 05 February 1894
• Citation: 120 Mo. 12,25 S.W. 346
• Parties: STATE ex rel. PARKER v. THOMPSON et al.
• Court: Missouri Supreme Court

25 S.W. 346

120 Mo. 12

STATE ex rel. PARKER v. THOMPSON et al.

Supreme Court of Missouri, Division No. 1.

February 5, 1894.

FACTORS AND BROKERS — COMPENSATION — LIEN — WAIVER.

1. Plaintiff entered into a contract with A. by which he was to manufacture materials shipped to him by A. into barrels, and sell them in his own name. The materials were to remain the property of A., and plaintiff was to receive a fixed salary per month. Held, that plaintiff was A.'s factor in the receipt of the materials and sale of the barrels.

2. A factor has a lien upon the goods of his principal in his possession to protect himself against unpaid drafts drawn and accepted in the course of the agency.

3. A factor's lien is not waived by the failure to reserve it in the written contract creating the agency, as it is only waived by express terms or necessary implication.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by the state on the relation of James H. Parker against William B. Thompson and another. From a judgment for defendants, relator appeals. Reversed.

S. N. Taylor and Mills & Flitcraft, for appellant. W. B. Thompson and Geo. M. MacKellar, for respondents.

BLACK, C. J.

Daniel B. Sickles commenced a suit of attachment in the circuit court of the city of St. Louis against the Anchor Manufacturing Company, in March, 1890. The sheriff levied the writ upon a small steam boiler, a stave-cutting machine, and some other machinery and office furniture, and also upon some $5,000 worth of barrels and barrel material, all of which was then in the possession of James H. Parker, the plaintiff in this action. Parker served upon the sheriff a written notice of a claim to the property, stating the claim to be that of a factor. Thereupon the plaintiff in the attachment suit gave bond under the provisions of the act of 3d March, 1855, concerning the duties of sheriff and marshal in the county of St. Louis, and the sheriff sold the property. Parker then brought this suit against the principal and sureties in the bond. The trial court sustained a demurrer to the plaintiff's evidence, and the plaintiff took a nonsuit, with leave, etc. As the plaintiff's right to recover depends upon the question whether he has a factor's lien upon the property or any of it, and that question depends to a considerable extent upon the contract between the plaintiff and the Anchor Manufacturing Company, the defendant in the attachment suit, we set out the contract in full: "This agreement, entered into this tenth day of August, 1889, between the Anchor Manufacturing Company, of Detroit, Michigan, and James H. Parker, Esq., of St. Louis, Missouri, witnesseth as follows: The Anchor Manufacturing Company, being desirous of selling a portion of its one-stave barrel material in St. Louis and vicinity, hereby agrees to allow James H. Parker to represent them as their agent in St. Louis, Missouri, and vicinity, under the firm name of James H. Parker & Co., upon conditions hereinafter mentioned, from and after this date, for one year if terms of contract are satisfactorily carried out, and for a longer time if mutually agreed upon by all parties interested. The Anchor Manufacturing Company hereby agrees to ship barrel material, sizes and prices to be hereafter agreed upon, to J. H. Parker & Co. of St. Louis, Mo., making drafts on each shipment, or on general account of shipment, at 60 days. J. H. Parker & Co. hereby agree to accept above-mentioned drafts on account, and to work up a trade for the Anchor Manufacturing Company's material, make all collections, and apply same toward Anchor Manufacturing Company's drafts and the operating expenses of their firm. J. H. Parker & Co. further agree to use careful judgment in the selection of their customers, and to sell only to responsible parties. The Anchor Manufacturing Company agrees to assist J. H. Parker & Co. in getting the business started, and guaranties the payment of rent of a suitable plant and operating expenses during the existence of this contract, and also guaranties J. H. Parker a salary of $125 per month for the first six months and $150 for the following six months of the first year. If the business increases constantly during the year, and grows fairly profitable, the Anchor Manufacturing Company agrees to reconsider this salary, and pay J. H. Parker either a commission on sales, or make some other satisfactory arrangement agreeable to both parties concerned. J. H. Parker & Co. hereby agree not to associate any party or person or persons as a partner with their firm in the agency without first obtaining the consent of the Anchor Manufacturing Company, to whom all property, cooperage material and barrels, tools and fixtures belong; and J. H. Parker & Co. further agree to carry on the business of making up this one-stave barrel material into barrels of the different sizes that are required by the trade of St. Louis and vicinity for flour, coffee, spices, chemicals, and dry paints and all other merchandise that can be obtained for the one-stave barrel packages in the place named, in a business-like manner, making full and accurate reports to the Anchor Manufacturing Company each month of the business transacted, and to get the highest price possible for the one-stave barrel at all times."

According to the bill of exceptions, the plaintiff produced evidence tending to prove the following facts: The Anchor Manufacturing Company, pursuant to the terms of the contract, shipped to the plaintiff machinery and tools to fit up a factory in St. Louis for the purpose of manufacturing the one-stave material into barrels, and at the same time furnished the plaintiff money to pay the expenses of setting up the machinery, and furnishing and fitting up an office at that place, and to pay rents for one month. All subsequent expenses, including wages of employes, clerk hire, rents, and the plaintiff's salary, were paid by him out of proceeds arising from the sale of barrels and barrel material. He paid no part of such expenses out of his own means. The business of the factory at St. Louis seems to have been carried on in the name of J. H. Parker & Co., though the machinery and tools and office furniture were the property of the Anchor Manufacturing Company. From the date of the contract to the commencement of the attachment suit the Anchor Manufacturing Company shipped to the plaintiff large quantities of the barrel material. Plaintiff made up portions of this material, and sold barrels and material as contemplated by the contract. He applied the proceeds to the expenses of the factory carried on by him in his name for the principal and to the expenses...